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THE UNION HANDBOOK for the FMLA

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THE UNION HANDBOOK for the FMLA Powered By Docstoc
					THE UNION HANDBOOK
       for the
        FMLA
  (Family Medical Leave Act)

                      by

         Loren Gibson
  Gibson & Associates, P.L.C.
    301 NW63rd, Suite 530
  Oklahoma City, OK 73116
        405/843-0900
     405/843-0921 (fax)
  lgibson@legalavenger.net


   “Your Legal Avenger”

         Family Medical Leave Act Handbook
            Gibson & Associates, P.L.C.
                       Page 1
About the Firm

       I am excited to announce the formation of my own firm. I believe the new
firm enables me to provide broader services to unions and their families. My
freedom to associate with other exceptional lawyers around the state enhances
my ability to focus superior representation for my clients and their families. Being
the principle shareholder in the Firm enables me greater control over how to focus
and shape my efforts to help unions and their families.

      I graduated, with honors (Summa Cum Laude equivalent), in 1990
from the University of Oklahoma School of Law. I was a member of the
prestigious Order of Barristers, Oklahoma Law Review, National Moot
Court teams, and received awards for the highest grades in several
classes, including the trial classes of evidence and civil procedure.

       I am a former Adjunct Associate Professor at the University of
Oklahoma teaching "Collective Bargaining" and "The Legislative
History of Labor Law". I am a frequent lecturer on various labor and
employment law topics, including continuing legal education courses
for the Oklahoma Bar Association and Lorman Educational Services.

     I am a member of Who’s Who in American Law, the National
Employment Lawyers Association, Oklahoma Employment Lawyers
Association, Oklahoma Trial Lawyers Association, American
Association of Trial Lawyers, and the Oklahoma Bar Association, Labor
and Employment section. I am admitted to practice by the Oklahoma
Bar Association, the Eastern, Northern and Western Federal District
Courts, and the Tenth Circuit Court of Appeals.

       Gibson & Associates, and my Of Counsel partners, have over 60 years of experience
representing individuals, workers, FOPs, unions, and their families. We handle all aspects
of the Union relationship, including discipline arbitration, contract arbitration, impasse
arbitration, NLRB charges, negotiations, injunctions and court litigation.

       My new firm can provide exceptional services for individuals, workers and their
families. We take workers comp cases, personal injuries (car, boat, motorcycle,
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                                 Gibson & Associates, P.L.C.
                                            Page 2
airplane accidents, slip and fall) defective and dangerous products and drugs,
nursing home abuse, medical malpractice, and just about anything else an individual
may need.

       We also have significant experience in wrongful discharge and discrimination
claims, including First Amendment Free Speech and Freedom of Associations claims,
workers compensation retaliatory discharge claims, public policy discharge claims, and
FMLA claims.

       I am particularly pleased to announce that one of my Of Counsel partners, Joe
Biscone, has represented exclusively workers in workers compensation claims for over
25 years. For several years we had tried to get Joe to join us to do workers comp cases, it
is an honor to announce his association with me. Joe is a former professional bull rider,
turned lawyer. His toughness is evident in his representation.

         We do not represent any employers or insurance companies. In prior firms I was
with, our workers comp attorneys did this. While I believe they did a good job for our
clients, I feel enhanced optimism by having attorneys that are more ideologically
dedicated to individuals, without any possibility of being worried about the effects of their
cases hurting the other business/insurance clients they represent.

      We also have a very unique component to our practice,
representing disabled kids and adults. We are one of only a few firms in
the State that represented parents and children in IDEA, IEP, § 504, and
ADA claims against school districts. We also have, on-staff; state wide
and nationally recognized advocates assisting with IEPs, income
waivers, and obtaining equipment and services for the children.

      We also have in-house disability advocates who provide nursing home monitoring to
make certain your loved ones are not being mistreated, neglected or abused.


 THE UNION HANDBOOK FOR THE FAMILY MEDICAL LEAVE
                      ACT


I.     PROTECTED EMPLOYEES:

       A.     Eligible Employees:

              1.     Must have one year of employment.
                               Family Medical Leave Act Handbook
                                  Gibson & Associates, P.L.C.
                                             Page 3
            2.   Work 1,250 hours within 12 months prior to starting FMLA
                 leave.
            3.   Laid-off employees are not covered.
            4.   Temporary employees are covered.

      B.    Covered Employers:

            1.    Company must have 50 employees within a 75-mile radius.
            2.    Successor employers are covered.
            3.    Joint employers are considered a single employer.

II.   PROTECTED ABSENCES:
      A.    Birth/Adoption/Foster Care:

            1.    Both men and women can use birth or adoption leave.
            2.    Foster care counts if there some action of a state involved.
            3.    Can be used before or after the birth.
            4.    Can be used for doctors’ appointments, meeting with lawyers
                  or court dates.
            5.    Both private and agency adoptions are covered.
            6.    Prenatal care is covered.
            7.    Maximum of 12 weeks between a husband and wife can be
                  used, if they work for the same employer.
            8.    Must be taken all at once, unless the employer agrees
                  otherwise.

      B.    Serious Health Condition for Employee, Spouse, Child or Parent:

1.    Illness, injury or impairment (either physical or psychological).
2.    In-patient care (overnight stay) and subsequent treatment connected to
      such care.
3.    Continuing treatment:
                   A.     Missed more than three calendar days of work or daily
                          activities.
                          (i)    Seen by a healthcare provider two times (includes
                                 physician’s assistant or physical therapist).
                          (ii) You received treatment once in a regimen of
                                 treatment (prescriptions or therapy).
                   B.     Incapacity due to pregnancy or prenatal care.
                   C.     Incapacity or treatment for a chronic health condition
                          which requires periodic visits and continues over an
                          extended period of time and may cause episodic, rather
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                              Gibson & Associates, P.L.C.
                                         Page 4
                       than continuing, periods of incapacity.
                 D.    Incapacity due to permanent or long-term condition for
                       which treatment may not be effective.
                 E.    You received multiple treatments for surgery after an
                       accident or for a condition that would likely result in
                       incapacity for more than three calendar days in the
                       absence of medical intervention.


III.   WHO’S HEALTH CONDITIONS COUNT?

       A.   Spouses, Parents and Children are Covered:

            1.   Spouses – A spouse is anyone that the law recognizes
                 (including common-law spouses).
            2.   Parents – Biological, adoptive and step-parents count. In-
                 laws do not count. In loco parentis (someone who was
                 responsible for the employee’s day-to-day care and financial
                 support when the employee was a child) counts.
            3.   Children – Biological, adoptive, foster, stepchildren, wards
                 under a guardianship and someone you are raising count.


IV.    THINGS TO USE LEAVE FOR:
       A.   Doctors’ Appointments.
       B.   Legal Appointments and Court Hearings.
       C.   Caring for Family Members (Physically and Psychologically).
       D.   Providing Nutrition and Hygiene Care.
       E.   Transportation to a Doctor.
       F.   Psychological Comfort.



V.     HOW TO USE LEAVE:

       A.   12 Weeks in One Block.
       B.   Reduced Work Schedule.

            1.   Reduced hours per day.
            2.   Reduced days per week.
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                              Gibson & Associates, P.L.C.
                                         Page 5
       C.   Intermittent Leave (in Hours or Days).

            1.   Leave may be taken in the shortest period of time the
                 company uses for payroll purposes when accounting for
                 absences or other leaves.
            2.   Can be used to care for the employee or for family members.
            3.   For birth and/or adoption situations, the company must
                 agree.



VI.    JOB PROTECTIONS:

       A.   Guaranteed FMLA Leave for Protected Absences.

       B.   No Discipline for FMLA-protected Absences.

       C.   No Retaliation for FMLA-protected Absences.

       D.   No Intimidation or Coercion of Employees for Taking FMLA-
            protected Absences.

       E.   Return to Previous Job or a “Substantially Equivalent Job” Upon
            Expiration of the FMLA Leave.

       F.   Health Insurance Must be Maintained as if the Employee was
            Regularly Working.


VII.   HOW TO GET PAID ON FMLA TIME:

       A.   12 Weeks is Presumed Unpaid, Unless Leave Covers It.

       B.   Using Leave to Get Paid.

            1.  Private sector employees can be required by their employer
                to “burn” existing sick leave, vacation or personal days.
           2.   The employee may elect to use paid leave during this same
                period of time.
VIII. NOTICES TO THE COMPANY:


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                             Gibson & Associates, P.L.C.
                                        Page 6
      A.         For Planned Medical Care/Birth or Adoption, 30 Days’ Notice
            Must be Given.

      B.          A Notice as Soon as “Practicable” for All Other Reasons.

      C.         Employees Do Not Have to Mention the FMLA in Order to Get
            FMLA Protection.

      D.          Employees Can Complete FMLA Forms Upon Return to Work.



IX.   DOCTORS’ CERTIFICATES:
      A.    Paid Leave:

            1.    If the employee is “burning” paid leave, then doctors’
                  certifications for the need for FMLA can only be required if
                  they are normally required for that particular type of leave.

      B.    Unpaid Leave:

1.    Employers can require doctors’ certificates to prove the leave if they do
      so equally for all employees.
2.    The employer must provide 15 days to get the doctors’ certification.
3.    Companies can require a doctors’ certification only once every 30 days
      while an employee is on leave.

      C.    Return to Work Slips:

            1.    The policy must be carried out uniformly for all employees.
            2.    Can only be required if it is for the employee’s own health
                  condition.


X.    ENFORCING VIOLATIONS:
      A.    Federal Court Lawsuits.
      B.    Complaints to the U.S. DOL Wage and Hour Division.
      C.    Grievances and Arbitrations.
      D.    MSPB Claims.


                            Family Medical Leave Act Handbook
                               Gibson & Associates, P.L.C.
                                          Page 7
XI.   UNION APPLICATIONS:

      A.   Bargaining:

           1.   FMLA leave is a mandatory subject.
           2.   Collective bargaining agreement terms can be better than
                FMLA.

      B.   Grievances.

      B.   MSPB Claims.




I.    PROTECTED EMPLOYEES:

      A.   Eligible Employees:

           5.   Must have one year of employment.
           6.   Work 1,250 hours within 12 months prior to starting
                FMLA leave.
           7.   Laid-off employees are not covered.
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                             Gibson & Associates, P.L.C.
                                        Page 8
             8.     Temporary employees are covered.

      NOTE: An employee must have worked for the covered employer at least one year
during the employee’s life. This does not have to be a consecutive 12-month period. The
one-year employed rule can be divided any way mathematically possible. Separately, the
employee must actually have worked on the clock 1,250 hours in the 12 months preceding
the inception of the FMLA leave. Hours worked are counted under the same basis as
outlined in the Fair Labor Standards Act (“FLSA”) for overtime eligibility. This oftentimes
poses a problem for part-time employees and for employees who have already had
extended leaves of absence, particularly for workers’ compensation, disability and FMLA-
protected absences. The 1,250-hour requirement poses the biggest problem for
employees who have had one extended absence, have returned to work and then need to
take an additional absence for an FMLA-protected reason.
      The FMLA specifically does not cover employees who are laid off. FMLA protection
applies until the layoff occurs. However, once the employee is laid off, the FMLA cannot
be used as a basis to guarantee return to a position or to continue health insurance
benefits during the layoff period. Individuals need to be careful to determine what the
company’s policies and past practices have been in terms of implementing a layoff for
employees who are on a leave, such as disability leave or workers’ compensation, at the
time the layoff is to be implemented. If those employees have in the past not had a layoff
implemented until they are released to return to work, this should be considered in the
grievance and arbitration context.
      Temporary employees are covered by the FMLA. The primary employer for the
employee is the temporary agency. As such, upon the expiration of the leave, the
temporary employee has the right to be reinstated by the temporary agency. If the
employer who contracted with the temporary agency hires a replacement for the
employee on leave from the same temporary agency, the employee on FMLA leave has
the right to return to the same employer and the same job at the time of the FMLA
absence. Temporary employees also count toward the 50 employees of a covered
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                                  Gibson & Associates, P.L.C.
                                             Page 9
employer. A second employer (who contracts with a temporary agency) cannot fire the
protected employee or refuse to reinstate him or her after the FMLA-protected leave
because of the employee taking FMLA leave.


       B.     Covered Employers:

              4.     Company must have 50 employees within a 75-mile
                     radius.
              5.     Successor employers are covered.
              6.     Joint employers are considered a single employer.

       NOTE: There is a 50/20 test in measuring the number of a company’s employees.
That is, there must be 20 weeks during the year in which the employee needs the leave or
the previous year during which the company had 50 people on its payroll. A company is
not required to have 50 employees at the time FMLA leave is needed in order for the
employee to be protected by the FMLA. If the company did have 50 employees and then
downsized at the time of the leave, the employee is still covered by the FMLA.
       When businesses sell or merge, the employees do not necessarily have to restart
accruing their one year of employment or their 1,250 hours. As a “successor in interest”,
if essentially the same business continues using the same plant, the same workforce,
similarity of jobs and working conditions, similarity of supervisory personnel, similarity of
machinery and equipment, and similarity of products, the new company must provide
FMLA protections just as the old company did.
       Separate legal entities are considered a single employer for purposes of the FMLA,
depending upon the totality of circumstances in measuring whether the two companies
have common management, interrelation between operations, centralized control of labor
relations and a degree of common ownership or financial control. The number of
employees between joint employers can be counted toward the 50 employee, and time
worked between the two different employers may count toward the one-year rule or the
1,250-hour rule.
                                Family Medical Leave Act Handbook
                                   Gibson & Associates, P.L.C.
                                             Page 10
II.   PROTECTED ABSENCES:
      A.   Birth/Adoption/Foster Care:

           9.    Both men and women can use birth or adoption
                 leave.
           10.   Foster care counts if there some action of a state
                 involved.
           11.   Can be used before or after the birth.
           12.   Can be used for doctors’ appointments, meeting with
                 lawyers or court dates.
           13.   Both private and agency adoptions are covered.
           14.   Prenatal care is covered.
           15.   Maximum of 12 weeks between a husband and wife
                 can be used, if they work for the same employer.
           16.   Must be taken all at once, unless the employer
                 agrees otherwise.

      B.   Serious Health Condition for Employee, Spouse, Child or
           Parent:

           4.    Illness, injury or impairment (either physical or
                 psychological).
           5.    In-patient care (overnight stay) and subsequent
                 treatment connected to such care.
           6.    Continuing treatment:
                 F.    Missed more than three calendar days of work
                       or daily activities.
                       (iii) Seen by a healthcare provider two times
                             (includes physician’s assistant or physical
                             therapist).
                       (iv) You received treatment once in a regimen
                             of treatment (prescriptions or therapy).
                 G.    Incapacity due to pregnancy or prenatal care.
                 H . Incapacity or treatment for a chronic health
                       condition which requires periodic visits and
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                            Gibson & Associates, P.L.C.
                                      Page 11
                            continues over an extended period of time and
                            may cause episodic, rather than continuing,
                            periods of incapacity.
                     I.     Incapacity due to permanent or long-term
                            condition for which treatment may not be
                            effective.
                     J.     You received multiple treatments for surgery
                            after an accident or for a condition that would
                            likely result in incapacity for more than three
                            calendar days in the absence of medical
                            intervention.

       NOTES: This is the guts of the FMLA. One must have some type of a health
condition, either physical or psychological. The question is, is it “serious”? Employees only
need to meet one definition of “serious” health conditions.
       Overnight in-patient care at a hospital, hospice or residential medical care facility is
covered, as well as subsequent treatment after the in-patient hospital. For example, if you
go into the hospital and then need to be checked by a doctor for follow-up visits or receive
continuing treatment, such as physical therapy, all of the subsequent absences are
protected.
       Continuing treatment is a very broad and, as yet, not terribly defined area. One
clear definition is if the employee, spouse, child or parent misses more than three
consecutive calendar days of work or other daily activity, including daycare, and during
that period of time, is either seen by a healthcare provider, nurse, physician’s assistant,
chiropractor, social worker (on two separate occasions) or is seen by a healthcare provider
once and a regimen of treatment is provided. A regimen of treatment does not include
physicals or dental or eye examinations. However, a regimen of treatment does include
prescription medicines or therapy requiring special equipment (i.e., oxygen, etc.). A
regimen of treatment does not include only the use of over-the-counter medications, such
as aspirin, antihistamine, salves, bedrest, a fluids regimen, exercise, or other activities that
can be self-medicated without a visit to a healthcare provider. However, such over-the-

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                                   Gibson & Associates, P.L.C.
                                             Page 12
counter treatments, in conjunction with other treatment by a healthcare provider, can
constitute a regimen of treatment.
       Periods of incapacity due to pregnancy or for prenatal care are covered. Husbands
can go with their spouses to prenatal doctor’s visits. The trick here is that if it is not for
prenatal care (e.g., bedrest), the doctor must be willing to certify that the employee is
incapacitated from performing her regular essential job functions. Do not forget that
other complicating factors involved in the pregnancy may, in and of themselves, constitute
serious health conditions. For example, high blood pressure and/or stress in conjunction
with a pregnancy may result in the employee being incapacitated.
       The serious chronic condition is the one that is most often missed by employers.
This would include asthma, diabetes, epilepsy and other chronic conditions. Single
absences may be covered, without meeting the three-day rule. Visits to a nurse or
physician’s assistant who operates under the direct supervision of a doctor are protected;
one does not have to be actually seeing the doctor.
       Permanent incurable conditions are also covered. This would include those
conditions where you are under the continuing supervision of a doctor, but do not have to
actually be seeing or receiving active treatment by a healthcare provider. For example,
someone who has a stroke, has Alzheimer’s or who is in the terminal stages of a disease
may be under the continuing care of a doctor. Employees are allowed to take off work to
provide psychological care, nutrition and comfort for such persons, without necessarily
having to take such person to the doctor or without the person having to be actually
seeing a doctor on the date of the absence.
       Perhaps the most complicated and nebulous serious condition is that for which you
receive multiple treatments for a condition that would likely result in a period of incapacity
of more than three calendar days in the absence of medical intervention. The regulations
identify this condition to include chemotherapy, radiation, arthritis, physical therapy and
dialysis for kidney disease. There is perhaps a “magic pill” exemption here – that is, you
go to the doctor and receive a regimen of treatment that gets you back on your feet and

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                                   Gibson & Associates, P.L.C.
                                             Page 13
you do not actually miss three days of work, school or daycare but, if you had not gone to
the doctor, you would have missed more than three days, then the absence may be
protected.
      Generally, cosmetic treatments, such as plastic surgery or acne, are not covered,
unless in-patient hospital care is required. However, complications arising from such
treatment are covered. Ordinarily, unless complications arise, the common cold, flu,
earaches, upset stomachs, minor ulcers, routine dental work, routine orthodontia problems
and periodontal diseases are not covered. However, restorative dental or plastic surgery
after an injury or removal of cancerous growths that do qualify as serious health
conditions are covered.
      Treatment for substance abuse is protected by the FMLA. However, absences
resulting from substance abuse where no treatment is occurring do not qualify. As such, if
an alcoholic misses work because of a hangover, the absence is not protected. If the
alcoholic misses work to go into a treatment facility or attend Alcoholics Anonymous
meetings, then the absence probably is protected.
      A common myth is that only absences involving hospitalization or missing more
than three days of work are protected by the FMLA. The in-patient care rule and the
missing three day work rule are simply ways of determining serious health conditions.
There are other ways of measuring serious health conditions that do not require in-patient
hospitalization or missing more than three days of work. Specifically, the coverages for
pregnancy, prenatal care, chronic health conditions, permanent health condition, and
multiple treatments under the “magic pill” exemption do not require missing more than
three days of work.
      For example, an employee who regularly suffers from migraine headaches or
asthma will probably qualify under either the chronic health condition or permanent
incurable health condition test. As such, although the employee is not actively under a
doctor’s care but is generally under the care of a doctor for the condition, a single absence



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                                  Gibson & Associates, P.L.C.
                                            Page 14
because of a migraine or asthma attack or because the pollen count exceeds a certain
level may well be protected under the FMLA.


III. WHO’S HEALTH CONDITIONS COUNT?

      A.     Spouses, Parents and Children are Covered:

             4.     Spouses – A spouse is anyone that the law
                    recognizes (including common-law spouses).
             5.     Parents – Biological, adoptive and step-parents
                    count. In-laws do not count. In loco parentis
                    (someone who was responsible for the employee’s
                    day-to-day care and financial support when the
                    employee was a child) counts.
             6.     Children – Biological, adoptive, foster, stepchildren,
                    wards under a guardianship and someone you are
                    raising count.

      NOTES: Spouses can cover significant others if the state in which they are married
recognizes a couple as being married (i.e., common-law or same-sex marriages). For
example, Oklahoma is a common-law state. The general test is whether a couple hold
themselves out to the public as being married. A number of facts can be looked at in
determining whether someone is a common-law spouse. You can simply ask the person,
“Do you consider yourselves to be married?” You may want seek legal advice from a
family law lawyer on this matter if you are unsure of your marital status.
      Of course, if you argue that you are married for FMLA purposes, you must get a
formal divorce if you split up. While there are common-law marriages, there are no
common-law divorces. If you separate from a common-law spouse without a formal
divorce and later are ceremonially married to someone else, you may be a bigamist.
      “Parents” may be your natural biological parents, your adoptive parents or anyone
who has raised you. Generally, aunts, uncles, in-laws and good friends are not covered by


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                                  Gibson & Associates, P.L.C.
                                            Page 15
the FMLA. However, if someone in this category raised you as a child, then perhaps
absences to attend to their serious health conditions are covered.
       Almost any child will qualify. This may be your natural child, adopted child, foster
child, stepchild, or someone that you are raising. However, nieces and nephews are
generally not covered under the FMLA. However, if you are a guardian for a niece or
nephew or are raising that niece or nephew, then you may well be allowed FMLA-
protected absences for their serious health conditions.
       A special note about children: generally, only children under the age of 18 are
covered by the FMLA. The exception to this is when a child over the age 18 is “incapable
of self-care”. This was generally thought to be children who suffer from some sort of
permanent or long-term impairment, such as retardation, Down’s Syndrome, etc.
However, some courts have recently been holding that children over the age of 18 who
are normally healthy and who have been in the hospital for some time and are incapable
of self-care after the hospital for some period of time, are covered by the FMLA. This is a
tremendous ruling for employees. The basic idea here is that children over the age of 18
will generally not be protected for all serious health conditions. However, for “super-
serious” health conditions during which you child over the age of 18 is incapable of self-
care, parents probably will be allowed time off work. In measuring whether a child over
age 18 is incapable of self-care, the child must require “active assistance or supervision to
provide daily self-care in three or more of the following activities: grooming, hygiene,
bathing, dressing, eating, cooking, cleaning, shopping, using public transportation, paying
bills, maintaining a residence, using telephones and directories, using post office or similar
activities”.


IV.    THINGS TO USE LEAVE FOR:
       A.      Doctors’ Appointments.
       B.      Legal Appointments and Court Hearings.


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                                   Gibson & Associates, P.L.C.
                                             Page 16
       C.     Caring for Family Members (Physically and
Psychologically).
       D.     Providing Nutrition and Hygiene Care.
       E.     Transportation to a Doctor.
       F.      Psychological Comfort.


       NOTE: The law allows employees to take time off from work to “care for” family
members with serious health conditions. This phrase includes both physical and
psychological care and includes providing basic medical, hygiene, nutritional, and safety
care or transportation to or from a doctor or healthcare provider. It also includes
psychological comfort and reassurance that would be beneficial to a child, spouse or
parent with a serious condition. This also includes filling in for persons who are caring for
a family member, such as a home health nurse, and to make arrangements for changes in
care, such as transfer to a nursing home or arranging for medical appointments.
       It is very important to understand that the employee does not have to provide a
necessary medical service for the family member in order to take time off to care for the
family member. A lot of employers believe that medical assistance is necessary and will
violate the FMLA by suggesting that a different family member take care of the ill party or
that the employee make alternative arrangements for providing care for a seriously ill
family member. This is not and cannot be required of an employee. Providing physical
and psychological care and comfort is very broad. You need to be careful and have a
doctor explain in the certification form the need for having the employee, by virtue of
being a parent, spouse or child of an ill parent, provide psychological comfort, reassurance
or nutritional or hygienic care.


V.     HOW TO USE LEAVE:

       A.     12 Weeks in One Block.
                                   Family Medical Leave Act Handbook
                                      Gibson & Associates, P.L.C.
                                                Page 17
       B.     A Reduced Work Schedule.

              1.     Reduced hours per day.
              2.     Reduced days per week.

       C.     Intermittent Leave (in Hours or Days).

              4.     Leave may be taken in the shortest period of time
                     the company uses for payroll purposes when
                     accounting for absences or other leaves.
              5.     Can be used to care for the employee or for family
                     members.
              6.     For birth and/or adoption situations, the company
                     must agree.

       NOTES: In birth or adoption situations, the employee is required to use the leave
all at once. This is different than for complications arising from pregnancies or prenatal
care; it is intended for the situation when you have had a baby and you want time to be
home with a newborn.
       In measuring the shortest period of time utilized by the employer’s payroll system
to account for absences, the employer must allow employees to take FMLA in blocks of
time of one hour or less. An employer cannot require the employee to “burn” a full day of
FMLA leave because it only allows vacation to be used in one-day increments. Similarly,
an employer may not require FMLA leave to be used on a full-week absence basis if the
company has a requirement that vacation be utilized in one-week increments.
       When taking intermittent leave or reduced leave based on foreseeable and planned
medical treatment of the employee or family members, or when the employer allows
intermittent or reduced leave for the birth of a child or placement of a child for adoption or
foster care, the employer may require the employee to transfer temporarily during this
period of intermittent or reduced leave to an available alternate position which better
accommodates the employer during periods of leave. Transfer to such positions does
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                                  Gibson & Associates, P.L.C.
                                            Page 18
require compliance with any collective bargaining agreement provisions. As such, if the
employee does not have the seniority to take an alternate position, the employer may not
force a senior employee to be removed from a job in order to allow a junior employee with
FMLA needs to be placed into the position as an accommodation of the employer. Any
alternative position must have the equivalent pay and benefits but, for these purposes
only, is not required to have equivalent duties. The employer may have to increase the
pay and benefits of an alternative position in order to make them equal to those of the
employee’s regular position. The same level of pay and benefits must be measured in
terms of hours worked. Reassignment to an alternative position cannot be done in order
to discourage the employee from taking the leave. The United States Department of
Labor (U.S. DOL) regulations are clear that a white-collar employee cannot be forced to
perform laborer’s work, or a day-shift employee cannot be reassigned to a graveyard shift,
or employees at a headquarters cannot be forced to work at a branch or at a significant
distance from the employee’s normal job location. Such actions are considered
discrimination or retaliation under the FMLA.


VI.   JOB PROTECTIONS:

      G.     Guaranteed FMLA Leave for Protected Absences.

      H.     No Discipline for FMLA-protected Absences.

      I.     No Retaliation for FMLA-protected Absences.

      J.     No Intimidation or Coercion of Employees for Taking
             FMLA-protected Absences.

      K.     Return to Previous Job or a “Substantially Equivalent Job”
             Upon Expiration of the FMLA Leave.

      L.     Health Insurance Must be Maintained as if the Employee
             was Regularly Working.
                               Family Medical Leave Act Handbook
                                  Gibson & Associates, P.L.C.
                                            Page 19
       NOTES: Employees cannot be disciplined for FMLA covered absences. This is true
for any FMLA absence, regardless of whether it is the first absence or the last absence in a
progressive attendance policy. A number of employers think that if the first absence is
FMLA-protected, then the last absence, or non-protected absences, can justify a
disciplinary event. You need to be careful, however, that employees grieve or protest
FMLA-protected absences as they occur. In terms of proceeding in arbitration or before
the Merit Systems Protection Board (MSPB), it is generally very difficult to raise FMLA-
protected absence in termination or suspension cases that were part of earlier progressive
steps (for example, verbal or written warnings). However, some arbitrators will allow such
to be raised. See, for example, Heard, Lock and Manufacturing Company, 108 LA 1212
(Jacobs, 1997). Also, in Bowen, 9 MSPR 335, 339-40 (1981), the MSPB determined that
previous discipline could be attacked in subsequent hearings on more serious discipline if
the previous discipline was “clearly erroneous”. This requires you, in any attendance-
related disciplinary action, to examine every absence utilized by the employer as a basis
for discipline to determine whether the absence could be FMLA protected. Do not rely on
the employer counting an absence as FMLA. You must make your own determination of
whether the absence is protected by the FMLA. Moreover, in federal court lawsuits, the
failure to grieve or attack the previous discipline may well not be a bar to litigating claims
of subsequent terminations.
       Restoration of health insurance and maintenance of health insurance by the
employee during leave is mandatory. Health insurance benefits must be continued for
employees while they are on FMLA-protected leave as if they were regularly working. If
the employee must pay some part of the premium, the employee must continue to do so.
If the employee normally does not pay part of the premium, the employer cannot require
the employee to pay his or her own premium. This is only good for the maximum 12-
week per year time period. Once FMLA leave has expired, the employer may require the
employee to pay premiums under the terms and conditions of the health insurance policy.

                                Family Medical Leave Act Handbook
                                   Gibson & Associates, P.L.C.
                                             Page 20
       Upon the expiration of FMLA leave, the employer must reinstate the employee to
the job the employee had at the time the leave began or to a substantially equivalent
position. The U.S. DOL says that an equivalent position is one that is “virtually identical” to
the employee’s former position in terms of pay, benefits, working conditions, privileges,
prerequisites, status, duties, responsibilities, skill, effort, responsibility and authority.
Equivalent terms and conditions include the same geographic work area, same shift, same
work schedule, same opportunity for bonuses/profit-sharing, and same fringe benefits.
However, if the leave is unpaid and the employee is not using sick-leave or vacation, the
employee may accrue additional benefits, seniority or working hours during unpaid FMLA
leave. The applicable collective bargaining agreement provisions will prevail on this
matter. However, if an employee is off on 12 weeks of FMLA leave, the employee’s
service time does not continue to accrue during this period of time simply because the
employee is on FMLA. There may be other reasons why service credit is maintained
during this time period. Certainly, the employer is not allowed to have discriminatory
policies that allow some employees in certain situations to continue service credit during
an unpaid leave but not allow those persons on FMLA leave to continue service credit
during their leave.
       Employee must be treated in all respects as if they were continuing to work. If
layoffs or shifts have been eliminated during the period of FMLA, the employee is to be
treated as if he or she was continuing to work. Of course, any provisions in your
Collective Bargaining Agreement, which require a different result, will prevail.




                                 Family Medical Leave Act Handbook
                                    Gibson & Associates, P.L.C.
                                              Page 21
VII. HOW TO GET PAID ON FMLA TIME:

       A.     12 Weeks is Presumed Unpaid, Unless Leave Covers It.

       B.     Using Leave to Get Paid.

              3.     Private sector employees can be required by their
                     employer to “burn” existing sick leave, vacation or
                     personal days.
              4.     The employee may elect to use paid leave during this
                     same period of time.

       NOTES: This is a particularly complex and problematic area of the FMLA. First, an
employer forcing an employee to “burn” accrued leave during an FMLA-protected absence
is a mandatory subject of bargaining and cannot be unilaterally implemented until it has
been negotiated with the Union. Second, a private employer may require an employee to
“burn” sick leave, vacation or personal days during FMLA leave to avoid stacking. This is a
situation where an employee would try to use several weeks of vacation plus 12 weeks of
FMLA for a total period of time off in excess of 12 weeks. Federal agencies cannot require
employees to “burn” leave while on an FMLA-protected absence.
       An employee can only use accrued leave to cover the situation as the employer’s
normal policy allows. Obviously, vacation and personal days can be used for any reason.
However, employees may not use sick leave to care for seriously ill family members unless
the employer’s normal policy allows sick leave to be utilized for such a situation.
       Workers’ compensation cases present interesting dilemmas. The U.S. DOL
regulations provide that because a workers’ compensation absence is not an unpaid leave,
the provisions for substitution of the employee’s accrued paid leave is not applicable.
Thus, while the period of time counts for FMLA protection, the employer may not force the
employee to “burn” accrued leave to pay for workers’ compensation periods of absences.
An employee has the right to refuse a light duty job under the “restoration to same or
substantially equivalent job” provisions. This may result in workers’ compensation benefits
                               Family Medical Leave Act Handbook
                                  Gibson & Associates, P.L.C.
                                            Page 22
being terminated, but does continue FMLA protections during that period of time. The
converse is also true: at least one court has ruled that when an employee is on light duty
at the time the FMLA provisions became available, if the employee is subsequently
released to return to duty, the employer must allow the employee to return to light duty
under the “restoration to same or similar job” provision. Once workers’ compensation
temporary total disability (TTD) benefits expire, the substitution of paid leave becomes
applicable, and either the employee or the employer may elect to use accrued leave.
      I have a disagreement with the analysis of the U.S. DOL regulations. For that
amount of wages which workers’ compensation does not cover (in Oklahoma, workers’
compensation pays up to 70% of wages, up to a maximum of $440 per week), I believe
that the employer may require the employee to “burn” accrued leave in excess of that, up
to the employee’s normal wages, or the employee may elect to use accrued leave, up to
the employee’s maximum wages. Oklahoma law allows state employees to do this.
      Pay under disability leaves, such as a disability insurance plan, are covered in a like
manner as workers’ compensation by the U.S. DOL.
      Public employees may use compensatory time to get paid for FMLA-protected
absences. However, an employer may not require an employee to use compensatory time
during a period of FMLA-protected absence.


VIII. NOTICES TO THE COMPANY:

      E.     For Planned Medical Care/Birth or Adoption, 30 Days’
             Notice Must be Given.

      F.     A Notice as Soon as “Practicable” for All Other Reasons.

      G.     Employees Do Not Have to Mention the FMLA in Order to
             Get FMLA Protection.

      H.     Employees Can Complete FMLA Forms Upon Return to
             Work.
                               Family Medical Leave Act Handbook
                                  Gibson & Associates, P.L.C.
                                            Page 23
         NOTES: Notice requirements are an extremely problematic area of the FMLA. For
planned medical procedures and births, the U.S. DOL and Office of Personnel Management
require the employee to give notice within at least 30 days. The employee is also required
to give an expected return to work date.
         For private sector employees, the U.S. DOL regulations say that the employee must
give notice of the need for FMLA leave “as soon as practicable under the facts and
circumstances of the particular case”. The regulations further say that it is “expected” that
the employee will give notice to the employer within no more than one or two working
days, except in extraordinary circumstances. At least one court has held that failure to
provide notice under an employer’s policy of calling in 30 minutes before a shift was
reasonable and the employee could not be disciplined or be denied FMLA leave for such.
         Of crucial importance is the fact that someone other than the employee may give
notice on behalf of the employee in “medical emergencies”. This can be for either the
employee or for a family member. Such notice can be done by telephone, telegraph, fax
or e-mail. An employer may not require advance written notice before FMLA leave is
taken.
         The FMLA also requires employers in the private sector to post notices in the
workplace regarding FMLA leave and are also required to include FMLA rights in any
employee handbook, policy or benefits statements. Where employers do not have policies
or handbooks in written form, the employer must provide written guidance to an employee
concerning his or her rights and obligations under the FMLA. This must be given every
time notice of an FMLA-protected event is requested. At least one court has ruled that the
employer’s failure to post the required notice can excuse the employee from the
requirement of giving advance notice for a foreseeable leave.
         For foreseeable leave, the failure of an employee to give the 30-day notice can
result in the employee being denied FMLA leave until 30 days after giving the notice. The
U.S. DOL regulations mandate that the employer must deny an FMLA request within two
days of the employee making the request, or the employer cannot deny the FMLA request.
                                 Family Medical Leave Act Handbook
                                    Gibson & Associates, P.L.C.
                                              Page 24
That is, if the employer does not deny the request within two days, the employee gets the
FMLA leave. At least one federal court has held this provision to be invalid.


IX.   DOCTORS’ CERTIFICATES:
      A.     Paid Leave:

             2.     If the employee is “burning” paid leave, then
                    doctors’ certifications for the need for FMLA can only
                    be required if they are normally required for that
                    particular type of leave.

      B.     Unpaid Leave:

             4.     Employers can require doctors’ certificates to prove
                    the leave if they do so equally for all employees.
             5.     The employer must provide 15 days to get the
                    doctors’ certification.
             6.     Companies can require a doctors’ certification only
                    once every 30 days while an employee is on leave.

      C.     Return to Work Slips:

             3.     The policy must be carried out uniformly for all
                    employees.
             4.     Can only be required if it is for the employee’s own
                    health condition.

      NOTES: The FMLA allows an employer to require an employee to have a doctor’s
certification for FMLA absences. The employer can only require the employee to provide
the date the condition commenced, its probable duration, probable duration of the
incapacity of the employee to work or maintain daily activities and a brief statement as to
how the medical facts meet the criteria for a “serious” health condition. Only information
regarding the health condition justifying the leave needs to be disclosed; the employer

                               Family Medical Leave Act Handbook
                                  Gibson & Associates, P.L.C.
                                            Page 25
cannot compel the disclosure of any other medical information. As such, doctors should
not provide all medical records of the employee or information regarding past history or
treatment of the employee. The U.S. DOL has compiled a form which meets its criteria for
this.
        If the employer questions the doctor’s certification, it can contact the employee’s
healthcare provider, but only to clarify and authenticate the certification. The employer
may not request additional information from the healthcare provider.
        The employer may require a second opinion at the employer’s expense. However,
the second opinion doctor cannot be one regularly employed by the employer. As such,
in-house doctors and clinics normally used by the employer cannot be used for the second
opinion. If the first and second doctors disagree, a third doctor will give a final and
binding decision. The third doctor must be jointly approved by the employer and the
employee.
        Employees must be given 15 days within which to obtain a doctor’s certification
form. If an employee is on a paid leave, such as vacation, then a doctor’s certification
cannot be required for the period of time that the paid leave is being used. That is, an
employer cannot require you to have a doctor verify FMLA eligibility during a period of
time that you are on vacation leave. The same is true for sick leave. If, under the
employer’s sick leave policy, you would not be required to provide a doctor’s certification
for the absence, you cannot be compelled to do it if you are being paid under sick leave.


X.      ENFORCING VIOLATIONS:
        E.    Federal Court Lawsuits.
        F.    Complaints to the U.S. DOL Wage and Hour Division.
        G.    Grievances and Arbitrations.
        H.    MSPB Claims.



                                Family Medical Leave Act Handbook
                                   Gibson & Associates, P.L.C.
                                             Page 26
       NOTES: Private sector employees can complain to the U.S. DOL Wage and Hour
Division, which can investigate the claim and try to resolve it with the employer. The U.S.
DOL may also file a lawsuit on behalf of an employee for FMLA violations. However, the
U.S. DOL is often backlogged on the quantity of FMLA cases it handles and relief may take
some time. At times, the U.S. DOL can be effective in explaining violations to the
company and it is particularly adept at investigating and explaining non-discharge related
violations.
       Private sector employees can file suits directly in federal court for FMLA violations.
This is not like discrimination – you do not have to go through the U.S. DOL to file a
lawsuit. Damages recoverable in federal court are double the actual money lost, injunctive
relief and attorneys’ fees. If a discharge is involved, a public policy wrongful discharge
lawsuit may be available against both private and public sector employers. The exercise
of FMLA leave may well constitute free speech for constitutional claims against public
agencies. Emotional distress and, possibly, punitive damages are available in a wrongful
discharge-style lawsuit.
       Federal employees must go through the MSPB. Currently, suits in federal court for
federal employees have not been recognized, but the issue is arguable.


XI.    UNION APPLICATIONS:

       A.     Bargaining:

              1.     FMLA leave is a mandatory subject.
              5.     Collective bargaining agreement terms can be better
                     than FMLA.

       B.     Grievances.

       C.     MSPB Claims.



                                Family Medical Leave Act Handbook
                                   Gibson & Associates, P.L.C.
                                             Page 27
       NOTES: Employers must bargain a number of provisions of the FMLA. Any aspect
of the FMLA which allows the employer some discretion is a mandatory subject of
bargaining with the Union. In Murphy Oil, 286 NLRB 1039 (1987), the NLRB held that
when a law gives an employer discretion in making decisions, the exercise of that
discretion is a mandatory subject for bargaining which requires negotiation to impasse
with the Union before the company may unilaterally implement a program. If the law
mandates a company to do something with no exceptions, the employer must follow the
law and does not have to bargain with the Union.
       There are a number of discretionary, and therefore mandatory, bargaining topics in
the FMLA. For example, the type of leave year to be utilized by the employer is
discretionary. The employer may pick a calendar year, a fiscal year or a rolling year.
Rolling years can run forward from the date of FMLA use one year forward or may run
backwards from the date the employee requested FMLA leave. The one-year rule is used
in determining whether or not the employee has worked 1,250 hours or has utilized 12
weeks of FMLA leave. The type of year to be utilized is a mandatory bargaining subject.
If you pick a fixed year (fiscal or calendar), then the employer may “stack” benefits,
including FMLA time. For example, if you use a calendar year, 12 weeks may end on
December 31 of one year and a new 12 weeks may begin January 1 of the next year.
This allows 24 total weeks in certain circumstances. Rolling years are the worst for
employees.
       It is a mandatory subject of bargaining whether or not a company forces an
employee to use accumulated leave while he or she is on leave. An employer is not
mandated to force employees to “burn” this leave; the decision to force the leave to be
used is discretionary.
       Additionally, forced leave usage may also violate seniority rights under the collective
bargaining agreement under vacation bidding or job selections. If employees are allowed
to utilize their seniority in determining when they take their vacations, an employer’s
decision to “burn” vacation for a different period of time (e.g., when FMLA leave is used),

                               Family Medical Leave Act Handbook
                                  Gibson & Associates, P.L.C.
                                            Page 28
then the employer is interfering with the collective bargaining agreement seniority rights.
Several arbitrators have held that employers cannot require employees to use their
vacation time to cover FMLA absences. Of course, the employee always retains the right
to utilize the vacation as a way of getting paid during FMLA-protected absences.
      The FMLA also allows you to bargain better benefits under a collective bargaining
agreement than the FMLA. Your collective bargaining agreement may not contradict the
FMLA, but it may provide greater protections. Nothing in the FMLA can be used to deprive
collective bargaining agreed to rights, unless there is a direct contradiction with the FMLA.
      Possible bargaining topics regarding the FMLA would include: the type of notice
provisions and requirements employees must give when taking FMLA-protected absences;
whether doctors’ certifications for the types of absences are going to be necessary (for
example, if an employer normally has a policy that says doctors’ notes will only be
required after three or four days of absences, doctors’ certifications cannot be required for
FMLA-protected absences shorter than three or four days); whether FMLA leave is paid or
unpaid; and the employer’s ability to force an employee to “burn” accumulated leave
during FMLA absences. Additionally, you may negotiate provisions that if an employee is
on workers’ compensation leave, he or she can use accumulated leave to supplement the
difference between workers’ compensation payments and full pay.
      In calculating the amount of FMLA leave utilized, you may use either a per-week
type basis or a per-hour type basis. The concept here is the amount normally worked
during the course of a week. For example, if an employee works five days during a week
and misses one day, the employee has used one-fifth (1/5) of one week of FMLA. You
may also translate this to hours: a normal 40-hour work week is 480 hours worth of
leave. If an employee normally works 50 hours a week, the employee gets more FMLA
hours per week.




                               Family Medical Leave Act Handbook
                                  Gibson & Associates, P.L.C.
                                            Page 29

				
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